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Unchecked And Unbalanced: Presidential Power in a Time of Terror

Unchecked And Unbalanced: Presidential Power in a Time of Terror

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Unchecked And Unbalanced: Presidential Power in a Time of Terror

517 pages
7 heures
May 10, 2011


Thirty years after the Church Committee unearthed COINTELPRO and other instances of illicit executive behavior on the domestic and international fronts, the Bush administration has elevated the flaws identified by the committee into first principles of government.

Through a constellation of non-public laws and opaque, unaccountable institutions, the current administration has created a “secret presidency” run by classified presidential decisions and orders about national security. A hyperactive Office of Legal Counsel in the Department of Justice is intent on eliminating checks on presidential power and testing that power's limits. Decisions are routinely executed at senior levels within the civilian administration without input from Congress or the federal courts, let alone our international allies. Secret NSA spying at home is the most recent of these. Harsh treatment of detainees, “extraordinary renditions,” secret foreign prisons, and the newly minted enemy combatant designation have also undermined our values. The resulting policies have harmed counterterrorism efforts and produced few tangible results.

With a partisan Congress predictably reluctant to censure a politically aligned president, it is all the more important for citizens themselves to demand disclosure, oversight, and restraint of sweeping claims of executive power. This book is the first step.
May 10, 2011

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Unchecked And Unbalanced - Frederick A.O. Schwarz Jr.

Table of Contents

Title Page



Part I - Cold War Lessons

Chapter 1 - Flawed Mandates: Early Years of the FBI and CIA



Secrecy and Lack of Oversight

Chapter 2 - Revelations of the Church Committee

Our Secret Police State

Political Uses of Intelligence Information

The CIA: Covert Action Abroad and at Home

Consequences and Responsibility

Chapter 3 - Reform and Resistance: Consequences of the Church Committee

The Church Committee’s Reform Agenda

Rolling Back Reform

The 9/11 Commission

Part II - Adopting Tactics of the Enemy

Chapter 4 - Our Torture Policy

America’s Clear Laws Against Torture

Assaulting the Law Against Torture

Metastasis of Torture

Plausible Deniability Once More

The Executive’s Freewheeling Interpretation Power

Flawed Internal Investigations

Reaping What We Sow

Chapter 5 - Extraordinary Rendition and the Wages of Hypocrisy

Rendition Before 9/11

Rendition After 9/11

The Laws We Do Not Know

Rendition’s Flawed Results

The Wages of Hypocrisy

The Costs of Presidential Unilateralism

Chapter 6 - Bringing War Back Home

America: A Surveillance State Again

Lies and Whispers: How Checks and Balances Failed

The President’s Lock-Up Power

Part III - The Constitution Turned Upside Down

Chapter 7 - Kings and Presidents

Seeds of Counterrevolution

The Counterrevolution Ascendant

The President and Emergencies

The Revolution Betrayed

The Supreme Court and Presidential Lawbreaking

Changing Times, Changing Threats

The Framers’ Enduring Wisdom

Chapter 8 - The King’s Counsel

American Lawyers in Public Life and Government

The OLC Today






Copyright Page

Also by Frederick A.O. Schwarz Jr.

Nigeria: The Tribes, the Nation, or the Race: The Politics of Independence


To Ricky, my beloved wife


To my parents


In the late 1970s, former president Richard Nixon had claimed to the Senate and the American public that a president had power to set aside laws enacted by Congress. Few then accepted Nixon’s blunt assertion that when the president does it, that means that it is not illegal. But his claim was not forgotten. Ten years later, in 1987, the same claim reappeared in the minority section of a congressional report about the Iran-Contra scandal. According to the minority report, the Chief Executive will on occasion feel duty bound to assert monarchical notions of prerogative that will permit him to exceed the laws. The leading congressional advocate of this view was a new representative from Wyoming by the name of Richard Cheney; when four commercial airplanes became instruments of mass murder on the morning of September 11, 2001, Dick Cheney had become vice president of the United States.¹

At the onset of a national emergency, Americans understandably turn to the White House for leadership. As head of the executive branch and the security agencies it contains—the FBI, the CIA, and the Department of Defense—the President is best equipped among the three branches of government to respond immediately to crisis. On 9/11, jets scrambled, emergency services rallied, and law enforcement began investigations, as indeed they should have.

More than five years later, however, at the time of this writing, the executive remains the dominant, almost exclusive, branch of government choosing and wielding national security tools in response to terrorist threats. President George W. Bush acts with little deference to or collaboration with Congress or the federal courts on matters he considers relevant to national security. Further, the views of the Iran-Contra minority report are now official policy and practice of the United States. For the first time in American history, the executive branch claims authority under the Constitution to set aside laws permanently—including prohibitions on torture and warrantless eavesdropping on Americans. A frightening idea decisively rejected at America’s birth—that a president, like a king, can do no wrong—has reemerged to justify torture and indefinite presidential detention.

This is a book about how this new theory of unchecked presidential power developed and why it is embarrassingly wrong. This theory upsets the delicate balance of our constitutional government, sullies the nation’s name, and hurts vital counterterrorism campaigns. The theory is not a response to 9/11, but, as the 1987 minority report suggests, has long been nurtured by the leaders of today’s Bush Administration. Moreover, the executive branch’s mistakes are uncannily familiar. During the Cold War, intelligence agencies slipped into similar sorts of overreaching and abuse because of a lack of checks and balances. But Cold War errors are multiplied in scale today by the theory of unlimited presidential power.

This monarchical executive argument is deployed to many ends: for example, to defeat laws barring both torture and cruel or degrading treatment; to underwrite the outsourcing of torture to other countries, such as Syria and Egypt; to detain individuals, including Americans, indefinitely without any due process; to spy on Americans’ telephone calls and e-mails in violation of federal statutes and, at times, the Fourth Amendment; and to infiltrate and keep watch on domestic groups protesting government policy.

The framers of the Constitution and those who ratified it were acutely aware of threats both from overseas and from chief executives who wished to set aside the law. They recognized that if democratic government was to persist, no single individual—selected by lineage or popular suffrage—could be blindly trusted to wield power wisely.² So they restrained each branch of government from grasping excess power and dominating the others. This system of checks and balances was unique to the new republic. As James Madison explained, arguing for the Constitution’s ratification,

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government, which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place, oblige it to control itself.³

The Constitution entrenched not only a public power to judge leaders at the ballot box but also auxiliary precautions to stymie leaders’ inevitable efforts to immunize themselves from accountability. Reflecting Madison’s insights, the Constitution does not simply divide government power among three separate branches—a lawmaking part in Congress; a law-executing part in the president and his departments and agencies; and an adjudicative part in the federal courts—it also fashions a system of separate institutions sharing power, thus restraining each other from power’s abuse. No one branch may entirely ignore the others when the nation’s interests are at stake. Indeed, in a majority of vital decisions implicating constitutional values of national importance, each of the three branches typically plays some role. Contrary to much recent commentary, questions of national security are no exception to this rule. The Founders also believed this system of checks and balances was liberty’s first and best defense.⁴ The Bill of Rights followed as supplemental protection.

The checks and balances were termed auxiliary by the Founders because the American public was to have the final checking power at the ballot box. But democratic accountability at the polls is also intertwined with the checks and balances imposed by separate branches sharing powers. For the public to play its proper checking role at the ballot box, citizens must know what is done by government in their name. Between periodic elections, Congress and the courts are tasked with preventing the executive branch from obscuring policies and their consequences from public scrutiny and thus entrenching itself against electoral testing. Democracy cannot be reduced to a biennial trip to the polling station.

Yet at many points in American history, fear and crisis have temporarily shifted power to executive branch officials who have been tempted to ignore the Constitution’s wise restraints. Decisions to ignore the Constitution’s system of checks and balances, however, have rarely made the nation safer.

In 1798, a mere decade after the Constitution’s passage, President John Adams and his Federalist Party allies in Congress forced through the Alien and Sedition Acts in response to fears of French revolutionary radicalism. These Acts criminalized citizens’ speech critical of the government and allowed deportation, by order of the president alone without judicial review, of aliens deemed dangerous. Legal historian Geoffrey Stone explains that the Sedition Act, although defended as a way to strengthen the nation in its impending war with France, in fact served primarily as a political weapon to strengthen the Federalists in their ‘war’ against political opponents led by Vice President Thomas Jefferson. Federalist prosecutors argued that it was criminal for ordinary citizens to raise surmises and suspicions of the wisdom of the president’s measures. Thomas Cooper, a publisher and pamphleteer critical of the Adams Administration who was charged under the Sedition Act, argued to a jury that I know in England their King can do no wrong, but I did not know till now that the President of the United States had the same attribute. Cooper and nine other citizens were nevertheless convicted of the crime of criticizing the Administration.

The twentieth century again witnessed executive officers using unilateral security powers for political gain during the Palmer Raids. After World War I, the Department of Justice launched dragnet raids against immigrant communities, arresting and deporting thousands of innocent people without warrants or access to counsel. Eyeing a run for the White House and playing to the ethnic prejudices of the day, Attorney General A. Mitchell Palmer, chief instigator of these raids, condemned the detainees as people with sly and crafty eyes ... lopsided eyes, sloping brows and misshapen features.⁷ Executive power in the name of national security, operating without accountability, instead serviced political goals.

In February 1942, some twenty years after Palmer’s folly, President Franklin Delano Roosevelt issued a presidential order interning 117,000 Japanese Americans on the West Coast in relocation camps. Initially, this decision was made without congressional approval or judicial input. Cooler heads within the Administration reacted with alarm. Even before the internment, when lesser restraints on aliens were under discussion, Attorney General Robert H. Jackson warned the President not to make [scape]goats of all aliens as Germany has made [scape]goats of all Jews. The FBI and military officials said the vast majority of Japanese Americans were loyal to the United States. In the end, although both Congress and the Supreme Court gave post hoc approval to the internments, not a single documented act of espionage, sabotage, or treasonable activity of a person of Japanese descent living on the West Coast occurred.

It was irrational fear and prejudice—marching in lockstep with Roosevelt’s narrow electoral calculations—that propelled the Japanese internment. General John DeWitt, responsible for the army on the West Coast, rendered a report recommending internment of all West Coast Japanese Americans. His report is recognized today as a travesty based on unsubstantiated and even fabricated assertions. DeWitt saw no danger from German Americans or Italian Americans except in certain cases, but warned, a Jap is a Jap. He was not alone: the Attorney General of Idaho pressed for internment of Japanese Americans to keep this a white man’s country.

These examples of executive overreaching motivated by fear, prejudice, partisan bias, or parochial gain find homes in our constitutional heritage today—as examples of what not to do. One hundred and sixty-four years after Thomas Cooper’s Sedition Act conviction, the Supreme Court, in the New York Times v. Sullivan case, observed that although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history. ¹⁰ Four decades after the internment of Japanese Americans, Congress and President Ronald Reagan apologized for the fundamental injustice and offered financial reparations.¹¹ Although the Japanese American detentions were never formally repudiated, the Supreme Court’s opinion authorizing them has nonetheless become a byword for judicial abdication. ¹²

The Cold War and the 1947 National Security Act brought a new institutionalization of intelligence powers. Until the 1940s, the United States, unlike the former Soviet Union and Great Britain, had no organized secret intelligence services. What previously was ad hoc and informal became bureaucratic, regularized, and effective—a powerful tool concentrated almost exclusively in presidents’ hands. The FBI’s domestic security activities burgeoned. The CIA and the National Security Agency (or NSA) were born and rapidly expanded to enormous proportions. In 2005, the federal government spent $44 billion on the intelligence community’s sixteen agencies and 100,000 staff.¹³

With the swift growth of intelligence and security agencies came unprecedented secrecy. From the Alien and Sedition Acts to the Japanese American internment, executive branch overreaching largely took place in plain sight of the public. During the Cold War, secrecy justified in the name of national security hid governmental actions from Congress and the public, further undermining the Constitution’s checks and balances.

Intelligence agencies’ excesses during the Cold War came to public light most comprehensively in 1975–1976, through an investigation conducted by a Senate Select Committee known as the Church Committee after its chair, Senator Frank Church of Idaho. ¹⁴ In Part I of this book, we detail the Church Committee’s investigation of the intelligence agencies, particularly the FBI, the CIA, the NSA, and other components of the Defense Department. The Church Committee found that these agencies had exceeded their authority through abusive surveillance and disruption of political activity at home (e.g., trying to provoke Martin Luther King Jr. to commit suicide) and unwise overseas covert action (e.g., hiring the Mafia to try to assassinate Cuba’s Fidel Castro, and supporting the overthrow of Chile’s democratically elected government). Although men and women of the intelligence agencies directly committed abuses, the most serious breaches of duty were those of presidents and other senior executive branch officials who, the Church Committee determined, had the responsib [ility] for controlling intelligence activities and generally failed to assure compliance with the law.¹⁵

The Church Committee identified four key institutional flaws in government operating procedures that fostered reckless and immoral use of intelligence powers. These flaws undermined checks and balances during the Cold War, and are being repeated today to the detriment of the nation’s security, compounded now by the monarchical executive theory.

First, national security activities were organized under ambiguous laws and fuzzy instructions. These imprecise mandates placed no effective constraint on national security agencies. When laws fail to channel or limit the executive’s use of power, Congress fails in its threshold checking function.

The second institutional flaw diagnosed by the Committee was that senior executive branch officials gave implicit orders to violate the law. Sometimes these took the form of euphemism, sometimes winks and nods. Together, ambiguous laws and implicit orders allowed presidents and other senior officials to maintain plausible deniability. A device originally designed to hide from the rest of the world America’s responsibility for covert actions overseas, plausible deniability was redeployed to obscure from Americans responsibility for decisions inside the American government itself.¹⁶

The third flaw was that executive branch officials relied on an expectation of permanent secrecy to shroud the broad outlines and guiding assumptions of policy—not just operational specifics—from testing before Congress and the public. Secrecy further corroded officials’ inclination to ask themselves whether their decisions would violate the law. Time and again during the Cold War, executive branch officials broke clear laws without a second thought, thinking they would never be held to account for their trespasses.

Finally, feeble congressional oversight of national security activities translated into an utter failure of accountability. Until the midseventies, Congress either did nothing to put an end to executive branch adventurism or knowingly turned a blind eye. As Supreme Court Justice Robert H. Jackson warned, ultimate power may rightly belong to Congress, but only Congress itself can prevent power from slipping through its fingers.¹⁷

These institutional failings disabled the constitutional decision-making process envisaged by the Founders. They overly empowered the executive branch and yielded policies counter to our nation’s elementary commitments to liberty, human dignity, and decency. The absence of initial legal restraints and subsequent oversight meant that intelligence agencies extended unwarranted powers beyond even initial targets. This entirely predictable consequence is dubbed mission creep. During the Cold War period, those charged with protecting America thus moved, for example, from disrupting communists to disrupting civil rights leaders, antiwar protestors, and other social activists. Institutional flaws led to plainly illegal acts—sometimes purposeful, sometimes because, as one federal agent explained, we never gave it a thought.¹⁸

While the Church Committee stimulated some important statutory reforms, by the mid-1980s many of the same flaws began to reappear.

Today, a new and more hazardous incarnation of executive overreaching is in evidence. Part II of this book details three of the leading ways in which the post–September 11 executive branch is misusing its intelligence and security powers: authorizing illegal torture and abuse in American-run facilities overseas ; endorsing the extraordinary rendition system, whereby detainees are transferred for torture to other countries whose human rights records the State Department condemns; and engaging at home in illegal executive detention and spying. The growth of the intelligence bureaucracy during the Cold War means that the damage the executive branch can inflict when it oversteps the laws unchecked by other branches has increased exponentially.

With the exception of domestic spying—a conspicuous common feature of executive lawbreaking during the Cold War and again today—the specific forms of overreaching are new. But procedural failings familiar from the Cold War past are visible again. Ambiguous laws and fuzzy instructions, indirect orders, the expectation of permanent secrecy, and failures of congressional oversight all allow the White House and the intelligence and security agencies under its purview to adopt abusive tactics and drift into sweeping application of harsh tactics to innocent people.

Today, the President also deploys the monarchical executive theory to justify and shelter overreaching by intelligence and security agencies. Part III of this book explains how this theory developed, why it is wrong, and why it is significantly more dangerous than Cold War practices. It also explores how government lawyers played a pivotal role in bringing forth a monarchical executive.

The monarchical executive theory was not simply a response to 9/11. It was a realization of the vision first articulated in the Iran-Contra minority report headlined by then-congressman Dick Cheney. Within weeks of the 9/11 attacks, Vice President Cheney and his senior legal advisor David Addington, who had also been at Cheney’s side in the Iran-Contra investigation, urged that the Administration ignore prohibitions on government searches contained in the Constitution’s Fourth Amendment and in a host of federal prohibitions and start intercepting Americans’ e-mails and telephone calls. Similar logic was also soon used to justify extraordinary rendition and indefinite detention without trial.¹⁹

The executive branch has many means at its disposal to put the monarchical executive theory into action. Inevitably, executive branch lawyers must interpret the laws when they apply them. This gives the Administration an opportunity to exploit ambiguities or simply sidestep legal obligations. Post-9/11, the Department of Justice crafted legal opinions that reinterpreted the laws in unreasonable, and clearly erroneous, ways. Government lawyers also argued that the presidents could ignore the law simply by invoking unspecified national security concerns. These legal opinions remained secret—so neither Congress nor the public knew of the laws being set aside. Dissenters within the executive branch were excluded from decision making; some were pushed out of government. And the President, when signing laws, began issuing declarations that he did not intend to follow literally hundreds of provisions of law.

But presidential unilateralism has not made the nation safer. Overreaching and the resulting abuse of elementary human rights costs us our liberties and others’ support; it drives some into the arms of the enemy; and it corrodes the moral center of our nation’s constitutional heritage. As General Colin L. Powell explained in September 2006, condemning an executive branch effort to water down antitorture rules, The world is beginning to doubt the moral basis of our fight against terrorism.²⁰ In the current battle for hearts and minds—where success must be measured in terms of our ability to dissuade recruits to the enemy and to attract the support of allies—the resulting harm is great. Dodging the law, the President and other high officials are forced into hypocrisy or falsehoods to justify their illicit or immoral actions. Such mendacity inevitably saps both our international allies’ confidence in us and our own rule of law. Five years of President George W. Bush’s war on terror confirm a lesson drawn from 230 years of American history: when government responds to security threats by ignoring the Constitution’s checks and balances, America’s security, its moral luster, and its standing in the world are all diminished.

The 2006 elections showed in stark relief the centrality of checks and balances, of oversight and accountability. Few elections have so plainly been a referendum on the conduct of a presidency. Iraq, of course, was central. But more than the specifics of troop withdrawals and military strategy, it was real accountability voters emphatically demanded. Dozens of successful candidates accused their opponents of being rubber stamps for the Administration. The election of 2006 was thus a mandate for Congress to play its proper constitutional role. And it offers leaders of both parties a chance to remedy past errors.

This book does three things. First, it describes what went wrong. It is a Baedeker to the paths not taken, showing the consequences of oversight’s absence in a constitutional system spun out of balance. Second, it explains why untrammeled executive power, power wholly out of keeping with the basic American constitutional order, is hazardous to America’s safety and its values. Finally, it offers a road map for citizens and legislators of both parties who wish to reestablish the checks and balances that define our government and its place in the world.

From the nation’s founding on, we have been at our strongest when policies are formulated by deliberative, open, and democratic processes, and when they embody the values underpinning the Declaration of Independence and the Constitution. Without the clarity that informed criticism brings, and without candid public debate about goals and means, our security policy all too often becomes illicit, foolish, and harmful.

The current situation demands a meaningful democratic dialogue that openly, soberly, and without recrimination wrestles with how America ought to deal with terrorism threats. What is needed now is a bipartisan commitment to real oversight, and a rejection of the executive unilateralism that brought us torture, extraordinary rendition, and domestic surveillance. This means not just oversight, as the voters in the 2006 election sought. It also demands a reconsideration of the structures through which we achieve accountability. We must reach solutions through well-informed public debate. This means letting go of tools fashioned in the dark of unilateral White House deliberation. It means letting go of policies that cause us to lose both the goodwill of mankind and our own self-respect and integrity. And it means an informed dialogue that avoids cheap prejudice or partisan politics. There is no Republican or Democratic way to deal with terrorism.²¹ To be critical of the current Administration is not necessarily to be partisan. Rather, these are tough questions for all Americans. As Abraham Lincoln proposed at an earlier, far bloodier moment in American history, we must enter the debate with malice toward none; with charity for all . . . to bind up the nation’s wounds.²²

Part I

Cold War Lessons


Flawed Mandates: Early Years of the FBI and CIA

During the Cold War, as today, America faced and feared a dangerous foe.¹ The Soviet Union advanced vast and menacing armies into the heart of Europe. It blockaded Allied access to Berlin in 1948, ruthlessly repressed Hungarian freedom fighters in 1956, and put down the Prague Spring in Czechoslovakia in 1968.

Shortly after World War II, the Soviet Union also developed atomic and then hydrogen bombs, accelerating their development with espionage and information gleaned from Western traitors. Mutual nuclear destruction loomed. Americans began to fear a new, more deadly, World War III. For thirteen days in October 1962, the country sat transfixed as Soviet missiles capable of carrying nuclear bombs were discovered in Cuba within ninety miles of Florida.² As time passed, public concern shifted increasingly to the possibility that the Soviets and the Chinese would influence, undermine, or overthrow other governments through local wars in places such as Korea, or would ignite guerrilla insurgencies, coups, and more subtle incursions against democracies across the globe.

At home, some American officials exaggerated the threat of Communist influence. But, at the same time, that threat preoccupied many Americans, and it could not be ignored.³

Soviet (and Chinese) threats framed the thinking of U.S. governmental elites in foreign and domestic policy. Then, as today, some officials urged abandonment of long-standing moral norms in the face of the threat. A secret 1954 report for President Eisenhower by a commission on Covert Actions of the Central Intelligence Agency exemplified this approach. Chaired by General James H. Doolittle, who more than a decade earlier had led the first devastating firebomb air raid on Tokyo’s civilian population, this Commission told the President:

It is now clear that we are facing an implacable enemy whose avowed objective is world domination by whatever means and at whatever cost. There are no rules in such a game. Hitherto acceptable norms of human conduct do not apply. If the U.S. is to survive, long-standing American concepts of fair play must be reconsidered.

The Doolittle Commission also urged that tactics more ruthless than [those] employed by the enemy be adopted if necessary.

Today, we can examine the Cold War secure in the knowledge of America’s eventual victory. Hindsight should not, however, obscure the earlier era’s tangible sense of menace, or the felt necessity of vigorous response. These felt necessities, however, were used to justify ruthless measures—not only against foreign foes but also against Americans that the executive branch had decided were enemies, either of the nation or of individual officials holding transient political office. During the Cold War, as the Church Committee revealed most comprehensively, the executive branch engaged in widespread abuse of its security powers, operating beyond the checks and balances of constitutional government.

The institutional flaws leading to Cold War excesses can be traced back to the beginnings of the FBI’s domestic intelligence gathering under President Franklin Delano Roosevelt and to the CIA’s launch in 1947. In both cases, agency mandates were cast in nebulous terms with open-ended missions and inadequate boundaries. Also in both cases, executive branch officials made a conscious decision to keep the American public ignorant of the breadth and nature of the agencies’ mandates. Finally, in both cases, congressional oversight was lax or nonexistent.


In 1924, Harlan Fiske Stone, former dean of the Columbia Law School and later a Supreme Court Justice, became Attorney General for President Calvin Coolidge. Taking charge of the Justice Department, Stone concluded that many of its prior activities, particularly those of its Bureau of Investigation, the original name of the FBI,⁵ were lawless. In Stone’s view, the department maintain [ed] many activities which were without any authority in federal statutes and engage[d] in many practices which were brutal and tyrannical in the extreme. Stone had in mind incidents like the 1920 Palmer Raids, which involved indiscriminate arrests of the innocent with the guilty, unlawful seizures by federal detectives, intimidating preliminary interrogations of aliens held incommunicado, high-handed levying of excessive bail, and denial of counsel. During the Palmer Raids, a young J. Edgar Hoover, then head of the Justice Department’s General Intelligence Division, argued that to allow the detainees access to lawyers would defeat the ends of justice, and that, lacking proof of guilt, they should nonetheless be held on the off-chance that evidence might be discovered at some future date in other sections of the country.

Shortly after the raids, a group of distinguished lawyers and legal scholars—including future Supreme Court Justice Felix Frankfurter, Harvard Law School Dean Roscoe Pound, and leading constitutional scholar Zachariah Chafee—issued a report finding that during the raids, federal agents had used torture, illegal searches and arrests, and agents provocateurs such as have been familiar in old Russia or Spain. These agents infiltrated radical groups and, after reaching positions of power, instigated acts which might be declared criminal. The pre-Stone Justice Department responded to these allegations by searching files, including military intelligence files, to see if Frankfurter and other responsible critics had radical associations or beliefs.

Taking charge at the Justice Department, Stone issued new internal guidelines for the Bureau designed to prevent such conduct. He warned that a secret police may become a menace to free government and free institutions, because it carries with it the possibility of abuses of power that are not always quickly appreciated or understood. He told Hoover that the Bureau ought not to be concerned with political or other opinions of individuals. It is concerned only with their conduct and then only such conduct as is forbidden by the laws of the United States. Stone ordered that Bureau investigations be limited strictly to investigations of violations of law,⁸ effectively prohibiting speculative government fishing expeditions into people’s lives based on their political activities.

Stone cleaned house. He promoted J. Edgar Hoover to direct the bureau—with the support of the American Civil Liberties Union.⁹ Eight years later, Hoover still marched to Stone’s drum, telling a new attorney general, William DeWitt Mitchell, that because the Bureau was subject to the closest scrutiny, it should not investigate matters that from a federal standpoint, have not been declared illegal.¹⁰

Challenges from overseas led to changes in the Bureau’s domestic role. In the run-up to World War II, President Roosevelt issued conflicting and confusing directives to the FBI describing its domestic intelligence responsibilities. Some were secret presidential orders; others were embodied only in secret memos by Hoover describing conversations with the President. Some of Roosevelt’s new orders remained within the boundaries of the Stone standard. Thus, Roosevelt directed the Bureau to investigate espionage, sabotage, and violations of neutrality regulations—all examples of conduct forbidden by the laws of the United States. In some of his instructions, however, Roosevelt dramatically broadened the Bureau’s authority by tacking on what he loosely termed subversion to the subjects of investigation.¹¹ Roosevelt did not define this amorphous and imprecise term.

Roosevelt, then–Attorney General Homer Cummings, and Bureau Director Hoover explicitly rejected the idea of asking Congress for legislation to authorize expanded domestic security investigations. In a letter to Cummings, shared with Roosevelt, Hoover argued it was believed imperative that the expansion proceed with the utmost degree of secrecy in order to avoid criticism or objections. Cummings added that their plans for expanded domestic investigations should, therefore, be held in the strictest confidence, not revealed even to Congress.¹² In time, use of the word subversive in Roosevelt’s and subsequent presidents’ directives, coupled with operational secrecy, opened the door to large-scale abuses. Ambiguous instructions worked hand-in-hand with excessive secrecy to evade the checks and balances that flow from congressional and judicial involvement.

A few years later, Robert H. Jackson, another Roosevelt Attorney General and later a Supreme Court Justice and chief prosecutor at the Nuremberg war crimes trials of Nazi war criminals, warned of the uncertain breadth and inevitably subjective reach of the term subversive:

Activities which seem benevolent or helpful to wage earners, persons on relief, or those who are disadvantaged in the struggle for existence may be regarded as subversive by those whose property interests might be burdened thereby. Those who are in office are apt to regard as subversive the activities of any of those who would bring about a change of administration. Some of our soundest constitutional doctrines were once punished as subversive. We must not forget that it was not so long ago that both the term Republican and the term Democrat were epithets with sinister meaning to denote persons of radical tendencies that were subversive of the order of things then dominant.¹³

Jackson’s warning concerned the fickle and unpredictable application of the term subversive in the context of prosecutions, not surveillance. But fourteen years later, shortly before his death and after spending thirteen years on the Supreme Court and documenting at Nuremberg the inner workings of a totalitarian regime, Jackson renewed his warning against the danger of open-ended intelligence surveillance:

I can say with great confidence that [America] cannot become totalitarian without a centralized national police.... [T]he safeguard of our liberty lies in limiting any national police or investigative organization, first of all to a small number of strictly federal offenses, and second to nonpolitical ones .¹⁴

Jackson proved prescient. In the Roosevelt years, the FBI generally honored the earlier Stone standards despite its expanded mandate. The Bureau’s intelligence work largely consisted of investigating possible criminal conduct by Nazis or their sympathizers. Nevertheless, even during Roosevelt’s watch there were inklings of the abuse and overreaching to come in the Cold War era. At the White House’s request, the Bureau investigated members of the public who expressed approval of a speech by Charles Lindbergh, one of the President’s leading critics.¹⁵ The Bureau also investigated the entirely lawful conduct of groups such as the League for Fair Play, which, according to Bureau documents, was established by two ministers and a businessman for the purpose of furthering fair play, tolerance, adherence to the Constitution, democracy . . . and good will among all creeds, races and classes. Similarly, acting at the navy’s request after protests against racial discrimination by fifteen colored mess attendants, the FBI opened a decades-long investigation of the National Association for the Advancement of Colored People, or NAACP. From this acorn sprouted multiple investigations and infiltrations of the civil rights movement during the Cold War.


The CIA had its genesis in the Pearl Harbor attack of December 7, 1941.¹⁶ Faced with a colossal intelligence failure that precipitated America’s entry into World War II, Roosevelt turned to William (Wild Bill) Donovan—a New York lawyer and World War I hero—appointing him to the new position of Coordinator of Information. In 1942, Donovan formed the Office of Strategic Services, or OSS, the CIA’s predecessor. ¹⁷ Its mission was to gather and analyze strategic information and to conduct covert operations. During the war, the OSS provided useful military intelligence and sabotage, including support for the Allied invasion of Normandy in 1944.¹⁸

In 1945, President Harry S. Truman disbanded the OSS, concerned that it could become a Gestapo-like organization in peacetime, threatening domestic civil liberties.¹⁹ The OSS’s responsibilities were transferred to the State and War Departments. The emerging Soviet threat, however, soon created a new need for centralized intelligence. Donovan called for an organization under direct presidential supervision to procure intelligence both by overt and covert methods . . . provide intelligence guidance, determine national intelligence objectives, and correlate the intelligence material collected by all government agencies. The new agency, Donovan envisioned, would conduct subversive operations abroad but would be barred from police or law enforcement functions, either at home or abroad.²⁰

Donovan’s idea collided with entrenched bureaucratic interests. The military, the State Department, and the FBI all saw a new central intelligence organization as a threat to their independence, funding, and influence.²¹ Such interagency jealousies had broken out as early as World War II, harming U.S. intelligence efforts. For example, on hearing that OSS officers had secretly broken into the Spanish embassy in Washington to photograph documents (Franco’s Spain, though neutral, was suspected of having ties to Nazi Germany), FBI Director Hoover concluded the break-in fell within the FBI’s bailiwick. Rather than protesting to the White House, the Bureau waited for a second OSS entry and had FBI cars outside the Spanish embassy turn on their sirens to frustrate their rival’s operation.²²

In 1946, President Truman established a Central Intelligence Group, but, due to institutional pressures from existing agencies, the Group had only limited power. It was placed under the

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